Feb. 2, 2009 – In the final of the Dean’s Cup Moot Court Competition Jan. 29, four Duke Law students argued the case of Agustín Aguayo v. Francis J. Harvey, Secretary of the Army before a three-judge panel headed by Supreme Court Associate Justice Antonin Scalia.

2009 classmates Jessica Rivera and David Maxted argued on behalf of the petitioner, Aguayo, who sought an Army discharge based on conscientious objector status, while Adam Doverspike ’09 and Kristin Collins Cope ’10 acted as counsel for the respondent. Following oral arguments, Justice Scalia, Judge Allyson K. Duncan ’75 of the U.S. Court of Appeals for the Fourth Circuit, and Circuit Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the respondent, naming Doverspike Outstanding Oral Advocate.

The judges commended all four students on their advocacy. “I think your performances here augur very well,” Duncan said. “It was apparent the amount of care and thought you gave, and you were obviously anticipating almost every question.”

Doverspike and Collins Cope demonstrated mastery of the subject matter and argued well, according to all three judges. Scalia and Jolly observed that Rivera and Maxted had the harder argument to make.

“Let me congratulate the petitioners,” Scalia said. “I think you had the harder row to hoe, because frankly [Aguayo] is a loser.”

Doverspike said he felt lucky to address the judges last. “I had 45 minutes to listen to the other three speakers get comfortable with the panel of judges.”

“I have participated in different kinds of debate since high school, and I cannot think of a better way to finish my debate ‘career’ than to have performed my personal best in front of my professors, my fellow students, and three esteemed jurists,” he said. “Hearing Justice Scalia announce the judgment of the court for our team was an amazing feeling, as well as a reminder that hard work and dedication pays off. And hearing Justice Scalia announce ‘Mr. Doverspike’ as the Outstanding Oral Advocate is a moment I will never forget.”

Conscientious objection or reneging on a commitment?
The panel of judges presided over the Law School’s new Star Commons, their courtroom for the day. Scalia leaned back in his chair, his arms crossed, bending forward to pepper the students with questions.

Maxted and Rivera’s client, Aguayo, enlisted in the military in 2002, and applied for discharge as a conscientious objector shortly before his scheduled deployment to Iraq in 2004. The Army declined his petition following an investigation, after which Aguayo appealed, first petitioning the District Court for the District of Columbia, then the D.C. Court of Appeals for a writ of habeas corpus ordering the Army to discharge him as a conscientious objector.

Rivera challenged the Army’s rejection of Aguayo’s claim that his opposition to war was sincere and based in an ethical belief system he developed after enlisting. She argued that simply saying that Aguayo’s claims were unbelievable was not reason enough to deny him conscientious objector status.

“Mere speculation is not enough,” she said. “They need to point to something that would tend to discredit the sincerity of the applicant.”

Scalia was skeptical of the evidence supporting Aguayo’s claim. “There is no external evidence whatever,” he said. “Just your own testimony, and testimony of witnesses that I would expect to be favorable.”

Maxted argued that Army regulations make it hard for non-religious people to receive conscientious objector status.

“It fundamentally disadvantages someone who can’t show rigorous training and practice,” he said. On rebuttal, Maxted addressed the same point, responding to the respondent’s claim that Aguayo’s decision to apply for conscientious objector status came after he met with an attorney about his desire to leave the military, and that there was no evidence of a spiritual or ethical self-examination.

“I don’t think someone should have to cite Spinoza to prove they’re a conscientious objector,” Maxted told the judges.

“Who’s Spinoza, a conscientious objector?” Scalia asked.

“I believe he was an ethical pacifist, your honor,” Maxted replied.

Jolly pressed Doverspike on the issue of the Army regulation’s fairness to non-religious conscientious objectors. “It seems to me that … it’s a patchwork test that is fundamentally religious,” he said.

Doverspike defended the regulation. “The Army has allowed atheists out for conscientious objector reasons since 1968, when the first atheist conscientious objector was allowed out,” he said. “This is not a criterion that irreligious people can’t meet.”

The importance of oral advocacy
In comments to Duke Law students following the competition, Scalia expounded on the significance of oral argument, and the importance of competitions like the Dean’s Cup.

“A lot of people are under the impression that [oral advocacy] is a dog and pony show,” he said. “The judges have read the briefs, they come in with their minds made up, and this is just a performance for the benefit of your client. If that’s the impression you have, you are just wrong. I have never met a judge who doesn’t think that oral argument is important.”
Scalia said he has rarely had his mind changed during oral argument, but he has often been persuaded by a good oral advocate in cases where his mind wasn’t made up before a hearing.

Historic competition
The Dean’s Cup competition has been held annually at Duke Law School since 1963.

The four advocates in the final round had successfully completed two preliminary rounds, followed by quarterfinal and semifinal rounds. Each student argued four times in the preliminary rounds, twice each for the petitioner and respondent. The teams with the top eight oral argument scores participated in the elimination rounds.

Dean David Levi praised the efforts of all Dean’s Cup competitors. “I congratulate all of those who participated in this competition, they were all quite marvelous,” he said. “I judged some of the earlier rounds and I thought that they truly were remarkable.”